Presumption of Death

The distinction between a common law presumption of death and a statutory presumption of death order.

Common law presumption of death (CLP)
Statutory presumption of death (SDP)

When?
When a person is missing and there is no certainty as to whether he or she is dead or still alive.
• A person’s death was not due to natural causes. (CLP)
• If an aircraft is involved in an accident in or above the Republic or its territorial waters, or if any South African aircraft is involved in an accident anywhere. (SDP)

Who can apply?
Any interested party, such as a creditor, heir, surviving spouse or civil union partner of the missing person.(CLP)
The State takes the initiative, for example:
• Judicial officer (Inquests Act)
• Minister of Transport (Aviation Act) (SDP)

Burden of proof
The applicant must prove on a preponderance of probabilities that the missing person is dead. (CLP)
The judicial officer must be certain beyond reasonable doubt that the person is dead. (SDP)

Court
The high court in whose jurisdiction the missing person was domiciled. (CLP)
Police official must investigate the circumstances of the death and report the matter to the magistrate of the district concerned. (SDP)

Applicable law
Common law (CLP)
• Inquests Act 58 of 1959 (SDP)
• Aviation Act 74 of 1962
Effect on marriage
The marriage of the missing person is not automatically dissolved, but the surviving spouse must bring a separate application in terms of the Dissolution of Marriages on Presumption of Death Act 23 of 1979 in order to dissolve his or her marriage or civil union. (CLP)

If an inquest was held in terms of the Inquests Act and the finding was confirmed by the high court, the person’s marriage or civil union is automatically dissolved. The surviving spouse does not need to make a separate application for the dissolution of the marriage or civil union. (SDP)